October-December 2008 Archive

A recent letter to the editor of the Boulder Daily Camera explains an atheist perspective on "Merry Christmas":

Every time you wish us a Merry Christmas, you are persecuting us for our beliefs...Every time you wish us a Merry Christmas you are claiming that you have rights that we do not have. You are declaring that through your belief in a deity, you are better than us. Every time you say, "Merry Christmas" to a non-Christian, you might as well be suicide-bombing them or nailing them to a cross, placing a crown of thorns on their heads and sticking a spear in their sides.

Several follow-up letters to the Daily Camera, including one from an atheist (here, here, here, and here) contend that wishing someone "Merry Christmas" is not the same as murdering them by suicide bombing.

However, if we assume for the sake of argument that "Merry Christmas" is identical to "Now you will die, infidels," another part of the letter struck me as illogical. The letter concluded, "Happy Holidays!"

For the ultra-sensitive atheist, it is hard to see why "Happy Holidays" is an improvement over "Merry Christmas." "Holidays" is, after all, very obviously derivative of "Holy days." A scrupulously p.c. person who wishes someone "Happy holidays" might be taking care to be inclusive in case the person does not celebrate Christmas, but does celebrate Hanukkah, Eid, Yule, or Diwali. Well and good, but my own observation is that the non-Christian people who tend to pitch a fit because someone said "Merry Christmas" to them are not Jews, Muslims, or Hindus, but instead are a minority of atheists who are on the look-out for reasons to be offended. To this group, the phrase "Happy holidays," should not, logically, be any less offensive than "Merry Christmas." The latter refers to a single religious celebration, while the former aggregates a variety of religious celebrations. Indeed, the latter phrase should be even more offensive, since it reminds the readily-offended atheist of his separation not only from Christians, but also from the larger community of religious believers.

It is true that "Happy holidays" also includes Kwanzaa, which is not religious, but is founded on Afro-centrism and Marxism. (And which is celebrated by non-racist, non-Marxist African-Americans, just as some non-Christian Americans celebrate the Irving Berlin, Santa Claus Christmas.)

But what good does this do for the eagerly-offended atheist who is not African-American? "Happy holidays" refers, at most, to Kwanzaa (which is irrelevant to non-African-Americans) and to a collection of religious holidays (the very mention of which may be highly offensive to ultra-offendable atheists).

Therefore, it is my recommendation that you use the phrase "Happy holidays" if and only if you are speaking to an ultra-sensitive African-American atheist. If you speaking to a non-African-American ultra-sensitive atheist, "Happy holidays" may be an even worse form of suicide bombing than "Merry Christmas." For this group, simply say "Happy Days," thereby avoiding the incendiary word "holidays." For everyone else, you can wish them a "Merry Christmas", "Happy Hanukkah", "Cool Yule", or whatever else you want, with virtually no risk that the recipient of your glad tidings will consider you the equivalent of a suicide bomber.

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

The near-final version of this forthcoming article from the Texas Review of Law & Politics is now available on SSRN. I wrote the article with Carl Moody and Howard Nemerov. Here's the abstract:

There are 59 nations for which data about per capita gun ownership are available. This Article examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.

I blogged on VC about an earlier draft of this paper last spring. As is usually the case, VC commenters offered a variety of useful comments, which made the final paper better.11 Comments

Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment"

Despite erroneous media reports that Christmas 2008 is "over", Christmas is a 12-day festival that began on December 25, and continues until the "twelfth night" of January 5-6. Accordingly, it is not too late to send or receive Christmas cards, or to give or receive Christmas presents. Fortunately for gift-givers, Stephen Halbrook's excellent book "The Founders' Second Amendment" is now back in stock at Amazon. The first round of the "Second Amendment book bomb" had exhausted all of Amazon's inventory, and it took several days for Amazon's system to process the replenishment of supplies. Now, the book is available for immediate shipment. It is an indispensible book for anyone who is interested in Second Amendment issues. More broadly, now that originalism is becoming the leading method of constitutional interpretation, the book provides an outstanding template for examination of the range of sources which indicate the original public meaning of a constitutional provision. The book would be an excellent charitable gift for almost every library, including school libraries.

Do you like op-eds which pretend to be news articles?

If so, newspaper trends are going your way, as I explain in my latest column for the Rocky Mountain News. The cutting edge provider of such slanted "news" is ProPublica, a non-profit funded by the leftist Sandler family. Newspapers get the ProPublica "investigative journalism" articles for free, so in a time when newspapers must cut production costs, free articles can be very attractive. Even if they are one-sided argumentative pieces which have more in common with an op-ed than with a real investigative news article. 27 Comments

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone's
Commentaries was the by far the leading legal treatise in the Early Republic. Tucker included extensive analysis, in footnotes and in an appendix, explaining how the English common law of Blackstone had been changed in America. Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia's majority opinion in Heller quoted from Tucker's American Blackstone.

Justice Stevens' dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker's 1791-92 lecture notes described the Second Amendment as relating only to the militia.

David Hardy's article reviews Tucker's lecture notes, as they involve various freedoms enumerated in the Bill of Rights. Hardy finds that Tucker's view of the Constitution was far more libertarian (regarding issues such as free speech and press, or warrantless searches) than either modern Supreme Court doctrine, or the views sometimes ascribed to the Founders.

As for the Second Amendment, Hardy finds that Cornell's article, and therefore Justice Stevens' opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker's description of the Second Amendment. The language was from Tucker's explanation of Article I's grant of militia powers to Congress. Tucker's description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker's 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.

The Cornell article is St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006). Perhaps the error in article, and the derivative error in a Supreme Court opinion, could have been averted with better cite-checking.

In my December 13 column for the Rocky Mountain News, I pointed to declining interest in reading as one of the reasons for the financial problems of newspapers. One response I received was from a professional sports journalist. I've edited it a little bit, and omitted some details. The writer's point of view is strongly stated, but, I think, basically correct:

...It was nice to see the word "cretin" to describe the vast numbers out there who don't think reading is important.

All I can say to people who don't care right now about whether there's a local newspaper or two in town - or don't think it's important to democracy - is: enjoy living in a Big Brother, oligarchy some day real soon. Because if there is no independent, operable press keeping a check on power and exposing its wrongs then that is for sure where we'll be headed as a country.

I also think it is NO coincidence that our country is where it's at right now, because people aren't reading enough - and newspapers, included.

Everybody just wants to be "entertained" now, and for them that means having nothing to do with books or newspapers and everything to do with stupid video games, "reality" (there's a laugh, there's nothing real about it) TV and other total wastes of time.

Now that many of these people are out of a job and wondering why, because they often didn't/don't have the intellectual capacity to do think themselves out of their predicament and why they got into it in the first place - my response is: maybe you should spent more time reading newspapers and learning about your world and your community, instead of wanting to be "entertained" all the time by stupid stuff.

And I'll also freely admit that sports has played a large role in our great dumbing down of society. ESPN is a great, wildly profitable business. It's also a killer of young men's minds. People who might normally spend a day reading or going outdoors and meeting people and learning more about the world instead stay shut indoors watching crap like televised poker and two-hour long NFL pre-game shows and moronic round-the-horn gasbag, sports "debate" shows.

Add in all the dumb radios sports talk, regional 24-hour sports networks, and you've got a lot of absolute crap that young guys spend their time watching instead of picking up a good read.

I work in the sports media business, so I sound like a hypocrite, and maybe I am. But I think I'm telling the truth. I TRY to at least engage my audience a little bit, with some humor and intelligence, and not just blowhardedness, like many TV sports media types do.

My Independence Institute colleague Todd Shepherd (formerly a reporter for KOA radio) runs the Complete Colorado website. It's laid out like the Drudge Report, and it presents Colorado news--including original reporting by Todd. He's just published an article on the 2.25 billion dollars in eco-pork that ten Colorado municipalities are seeking as part of the impending "stimulus" package. Among the requests from the city of Boulder is six million dollars in order to convert 60 cars (in the city, county, and University of Colorado fleets) from ordinary hybrids to plug-in hybrids. That's a hundred thousand dollars per car. Even in eco-conscious Boulder, it is very, very unlikely that voters would approve spending their own tax money on such an inefficient spending project.28 Comments

Blogger Consensus: Card-check's chances iffy

The National Journal's latest poll of leading political bloggers from the Left and Right is now available. They disagree sharply on the Obama stimulus. The Left's average for the right amount for the stimulus was $746 billion. The Right's average was $34 billion, with plenty of Righties, myself included, favoring "zero" as the ideal amount. I wrote: "The solution to economic problems caused by excessive borrowing is not to borrow lots more money."

As to whether Obama should push card-check legislation (the proposal to deprive employees of the right to a secret ballot vote on whether to unionize), 88% of the Left says yes, while 76% of the Right says no. The right-wing support for Obama pushing card-check comes at least partly from the belief that it will harm him politically. I agree with the political observation, but I'm much more concerned with protecting rights than with Obama's political fortunes. I wrote: "Taking away the secret ballot is a direct assault on the right of free association."

Will card check pass next year? 44% of the Left thinks so, as does 24% of the Right. Several bloggers predicted that card-check would be pushed, but would eventually be traded off to ensure passage of other items on the union lobby agenda.34 Comments

Second Amendment Book Bomb on Monday

Monday is Bill of Rights Day. It is also the day for the Second Amendment Book Bomb, for Stephen Halbrook's outstanding new book The Foundersí Second Amendment: Origins of the Right to Bear Arms.

After the success of the Ron Paul "money bombs" last fall (when Paul supporters all made donations on a single day), Ron Paul supporters used the same concept this spring to launch a "book bomb," which turned Rep. Paul's book into the #1 best-seller on Amazon.com, and sent it to the top of the N.Y. Times bestseller list. Now, Dr. Paul is leading the campaign for a book bomb for another author.

On Monday, Stephen Halbrook will be speaking at the Independent Institute, in Oakland, California. (The Independent Institute is not related to the Independence Institute, which is where I work, in Golden, Colorado.) They are launching the book bomb, with an ambitious objective of one million sales for Halbrook's book.

I read the Halbrook book when it was in page proofs earlier this year. It is by far the best historical examination of the Second Amendment in the Founding Era. No matter how advanced your knowledge of the Second Amendment, you will learn a great deal from this book. Alan Gura used the book extensively in preparing his brief in D.C. v. Heller.

The Foundersí Second Amendment: Origins of the Right to Bear Arms is an excellent gift for anyone you know who is interested in the Second Amendment or legal history. It is also a fine gift for your local school library.

Over the last 30 years, Stephen Halbrook has done more than any other scholar to bring to light the history of the Second Amendment. He has a 3-0 record in the Supreme Court, and in Heller, he wrote the Congressional amicus brief on behalf of 55 members of the Senate, the Senate President (Richard Cheney), and 250 members of the House of Representatives.

From the Book Bomb link, you can learn more about the book, and have the opportunity to order the book from Amazon.com, BarnesandNoble.com, or BooksAMillion.com.

Twittersphere

Hugh Hewitt is among the leading conservatives who are urging conservative or libertarian public officials and commentators to start using Twitter. The Top Conservatives on Twitter website offers a wealth of feeds to which one can subscribe. If you would like to subscribe to my feed, it's @davekopel. (Go to http://twitter.com/davekopel, and click "follow.") My twitterfeed copies the content from my RSS feed (http://www.davekopel.org/feed.xml), which supplies links to my latest articles; the twitterfeed also includes my random thoughts on various subjects. Some readers may be interested in the twitterfeed of my Independence Institute colleague Ben DeGrow (http://twitter.com/bendegrow), who writes on Colorado education issues.13 Comments

Web, not bias, offing papers

So I argue in my column for today's Rocky Mountain News. I don't deny that there's a problem with bias in most of the MSM, nor that the bias has driven away some readers. But I reject the idea that bias is the most important factor in the mortal peril now facing so many American newspapers. As I see it, the problem has far more to do with the loss of classified advertising revenue, and with declining interest in reading. It would be nice, in a way, if the newspapers' financial problems could be traced to ideological issues, but I think that other factors are much more significant. The topic is particular interest to me these days, since on December 4, Scripps announced that the Rocky Mountain News--the paper for which I currently write, and for which my father worked full-time in the 1950s--is being put up for sale. If a buyer is not found within 4-6 weeks, Scripps will probably close the paper. Michael Roberts, the media columnist for the Denver weekly Westword, has an excellent, in-depth analysis of the situation.128 Comments

Blogger
poll:
Obama's
First Year:

The National
Journal has
published
its
latest poll
of
leading
political
bloggers.
The results:
Majorities of
left-leaning
and
right-leaning
bloggers
both agree
that Obama
will bring
"a little"
change to
the way
Washington
works. A
majority of
the Left and
Right agree
that
partisan
divisions
next year
will either
stay the
same or
increase.
Lefties
expect that
conservatives
will be
biggest
thorn in
Obama's
side,
whereas the
Righties
expect
Liberal
Democrats to
be an even
bigger thorn
for him.

Majorities
on both
sides agree
that Obama's
smartest
course would
be to
"Compromise
only as much
as is
necessary to
win passage"
for his
agenda, and
not to pad
his
majorities
with further
compromise.
The Left
thinks that
the smartest
course for
Republicans
would be to
downplay
their
differences
with Obama,
but the
Right
overwhelmingly
disagrees.
The Left
thinks that
the greater
risk for
Obama is not
tackling
enough
issues,
whereas the
right sees
the greater
risk in
Obama's
spreading
himself too
thin by
taking on
too many
issues.

The Left
bloggers
were asked
how much energy the
Democrats
should spend
investigating
the Bush
administration.
"A moderate
amount" was
the choice
of 60%. The
Right was
asked who
they would
like to see
become the
leading
voice of the
Republican
party next
year. The
winners were
Bobby Jindal
and Sarah
Palin, each
with 18%.
Although I
like Palin
and would be
happy to see
her elected
President, I
voted for
Jindal, whom
I described
as
"Brilliant,
principled,
articulate."
40 Comments

The article
begins with
the
observation
that,
domestically
and
internationally,
there are
many
religious
organizations
and leaders
who denounce
self-defense,
and who seek
to ban or
drastically
restrict
guns in
order to
impose their
own
morality.
The article
examines
some leading
religious
pacifist
philosophers,
and some
historical
examples of
how pacifism
has worked
in
real-world
conditions.

The article
has high
praise for
John Howard
Yoder
(perhaps the
greatest
pacifist
writer of
all time),
and for
Thomas
Merton (an
influential
advocate of
non-violence,
but not a
pacifist).
The article
is more
critical of
Stanley
Hauerwas,
more
critical
still of Leo
Tolstoy, and
dismayed
with the
shallow and
factually
inaccurate
writings of
Tony Campolo.

The article
sets the
record
straight on
the Danish
rescue of
the Jews
during World
War II. King
Christian X
never wore a
yellow star.
The Danish
response to
the Nazis
was very
cowardly at
the start,
at a time
when bravery
might have
changed the
course the
war. The
1943 rescue
of the
Danish Jews,
smuggling
them to
Sweden, was
very noble,
but it was
not an
example of
successful
pacifism in
action.
Switzerland,
which was
armed to the
teeth and
ready to
fight, ended
the war with
even a
better
record of
protecting
its native
Jews than
did Denmark.

The American
Civil Rights
Movement
used
pacifist
tactics at
some times,
even as
civil rights
workers
armed
themselves
for
protection
against Ku
Klux Klan
attacks. The
slogan
"violence
never solves
anything" is
the ethical
equivalent
of flat-Earth
geography.
It is a
purportedly
empirical
claim which
is
contradicted
by ample and
obvious
evidence.

In the real
world, there
are plenty
of brave
pacifists,
including
the Moriori
tribe of the
Chatham
Islands, who
chose to
suffer
genocide
rather than
use
violence.
The article
does not
attempt to
refute
arguments
that
pacifism is
mandated by
Christian
scripture,
or by other
sources of
religious
authority.
Rather, the
article
suggests
that the
argument
which some pacifists
make--that
pacifism
always,
necessarily,
leads to
better
real-world
results, is
empirically
false. In a
free
society, the
government
should not
force
pacifists to
use force.
Likewise,
pacifists
should not
attempt to
use
government
force to
deprive
other people
of the means
or the right
of
self-defense.

VC readers
saw a draft
version on
this article
on SSRN a
little over
a year ago.
The Charleston staff did a
great job
with the
article;
it's a
tighter,
more precise
piece thanks
to their
cite-checking.
Thanks also
to Eugene
Volokh, for
coining the
term
"pacifist-aggressives."
He too has
been
published in
a law
journal
which has
also
published
Obama,
namely the
Harvard
Law Review.
17 Comments

Blogger polls: Obama cabinet, and automaker corporate welfare

The National Journal's latest surveys of left-leaning and right-leaning bloggers are now available. Regarding the auto bailout, almost all left-leaning bloggers support it, provided there are major concessions from management only, or from management plus the unions. Right leaning-bloggers are strongly opposed, although a minority do favor a bailout if there are concessions by everyone. My own view was, "The auto companies and the unions need to renegotiate their retirement and medical programs. A bailout will impede, rather than assist, the necessary restructuring of the auto business."

On the Obama cabinet, the Lefties and Righties both like Treasury Secretary Geithner (a topic on which I was a minority, since he seems poised to continue the Bush policy of corporate welfare for the financial industry). The Right liked Defense Secretary Gates, and the Left liked Secretary of State Clinton. The biggest gap was on Attorney General Holder, who got a B+ from the Left and a D+ from the Right. In light of Obama's primary campaign rhetoric, I thought that the Gates/Clinton duo is a much more hawkish, pro-defense team than might have been expected. As for the Attorney General nominee, I wrote that "Holder served as No. 2 to one of the worst, most lawless attorneys general in U.S. history. His role and his lies in the Elian Gonzalez abduction were despicable." Although the poll didn't ask, I would also put Alberto Gonzalez in the group of "worst, most lawless attorneys general in U.S. history." Thank goodness he's not on the Supreme Court.35 Comments

Is Heller
like Roe v.
Wade? A
reply to
Judge
Wilkinson:

Fourth
Circuit
Judge J.
Harvie
Wilkinson,
III, is the
author of a
forthcoming
article in
the Virginia Law
Review,
Of Guns,
Abortions,
and the
Unraveling
Rule of Law.
Wilkinson
criticizes
the Supreme
Court's
decision in
District
of Columbia
v. Heller,
and argues
that the
majority
opinion is
wrong for
the same
reasons that
Roe v.
Wade was
wrong: both
cases
violated
"judicial
values,"
such as
deference to
legislative
decisions,
avoidance of
political
thickets,
and
federalism.
The draft
article has
attracted
much
favorable
attention
from the
media,
including
the New
York Times,
Washington
Post,
Associated
Press, and
George Will.

In a working
paper now
available on
SSRN, Nelson
Lund and I
critique
Judge
Wilkinson's
equation of
Heller and Roe.
Unraveling
Judicial
Restraint:
Guns,
Abortion,
and the Faux
Conservatism
of J. Harvie
Wilkinson,
III
argues that
Judge
Wilkinson's
analogy
between Roe and
Heller is
untenable.
The right of
the people
to keep and
bear arms is
in the
Constitution,
and the
right to
abortion is
not.
Contrary to
Judge
Wilkinson,
the genuine
conservative
critique of
Roe is based on
the
Constitution,
not on
judicial
"values."
Judge
Wilkinson,
moreover,
does not
show that Heller's
interpretation
of the
Second
Amendment is
refuted, or
even called
into serious
question, by
Justice
Stevens'
dissenting
opinion.

After
addressing
the Roe analogy, our
article
examines
Judge
Wilkinson's
stated rules
of judicial
restraint.
We contend
that Judge
Wilkinson
himself does
not adhere
to the
"neutral
principle"
that he
claims to
derive from
"judicial
values."
Under the
principle of
judicial
restraint
that he
articulates,
many
now-reviled
statutes,
including
the Jim Crow
laws of the
twentieth
century,
should have
been upheld
by the
courts. The
article
suggests
that Judge
Wilkinson
does not
accept the
consequences
of his own
supposedly
neutral
principle,
preferring
instead to
endorse or
condemn
Supreme
Court
decisions
solely on
the basis of
his policy
preferences.
Although the
Wilkinson
article is
couched in
the language
of judicial
restraint,
it amounts
to an
endorsement
of judicial
lawlessness.
127 Comments

The great
Dutch hymn
"We Gather
Together"
celebrates
Dutch
victory in a
battle of
the war of
independence
from Spain.
The hymn was
adopted by
Americans
because it
resonated so
much with
their own
circumstances.
It's a very
relevant
song this
year, too,
as the war
between
freedom and
tyranny
continues.
Here's
my VC post
on the song,
including
the full
lyrics, from
2005. And
here's a
good version
of the song,
from
YouTube. YouTube
has plenty
of other
versions
too, if you
want to hear
pure organ
music, or a
church
performance
in Spanish.
35 Comments

How to
Interpret
the
Constitution:

University
of Montana
Law
Professor
(and
Independence
Institute
Senior
Fellow)
Rob Natelson
explains it
all in this
32 minute
podcast.
I
interviewed
Rob for the
iVoices.org
podcast
series, and
we talked
about Ex
Post Facto,
Indian
Commerce,
Alexander
Hamilton's
duplicity,
and, most of
all,
constitutional
hermeneutics.
2 Comments

Two new books on the Heller case

Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment, by Brian Doherty (an editor of Reason magazine), premieres this week. The book is published by the Cato Institute. Here's the Cato site for the book, including a good video commercial. I read a pre-publication draft in September, and thought it was a solid history of the case, including the broader context around the case.

This afternoon (4 p.m. Eastern Time) Cato will host a forum on the new book, which you can watch online.

The other book on Heller is co-authored by Alan Korwin and me. The Heller Case:
Gun Rights Affirmed! Is much larger in page count and narrower in focus than the Cato book. The Cato book is a journalistic story of an important case, similar to
Gideon's Trumpet by Anthony Lewis. In contrast, The Heller Case
is a reference book on Supreme Court jurisprudence. It's a sequel to the Kopel-Halbrook-Korwin book from 2003,
Supreme Court Gun Cases. That book provided the text, along with commentary and analysis, for all 92 Supreme Court cases involving the Second Amendment (even in passing), firearms law, or self-defense law. The new book, The Heller Case, provides summaries of those 92 cases, plus the full text (the relevant parts) with analysis of three recent cases on firearms/self-defense (Brosseau, 2004; Small, 2004; Castle Rock, 2005). And then there is the full text of Heller itself, the 96th Supreme Court gun case. That's followed by 80 pages of analysis of the meaning and implications of Heller from scholars such as Glenn Reynolds (and me), and reactions from pro-rights groups, anti-rights groups, and also contrarian gun rights advocates who warn that the Heller will destroy the Second Amendment. Plus outline level summaries of every one of the 67 amicus briefs. And Alan Korwin's description of the scene on argument day, and life in Hellertown (the two-day camp-out scene outside the Court building).

Gun Control on Trial and The Heller Case would be, in my biased view, fine additions to your legal library, or great gifts for anyone who you know who is interested in Second Amendment issues.1 Comments

Should there
be judicial
performance
evaluation
for federal
judges?
Campaign
finance
limits for
state
judges?

Most states
have
commissions
which
evaluate the
performance
of state
judges.
Would it be
a good idea
to institute
similar
performance
review of
federal
judges? For
judicial
elections,
are campaign
contribution/spending
ceilings
constitutional?
What about
bans on
candidates
personally
soliciting
contributions?
There are
the topics
of a
symposium
issue of
the Denver
University
law review,
including a
foreword by
Justice
O'Connor.
Comments on
these topics
are very
welcome--but
only after
the
commenter
has read at
least one of
the articles
in the
symposium.
16 Comments

Earlier
this year, Eric Holder--along
with Janet Reno and several
other former officials from the
Clinton Department of
Justice--co-signed an amicus
brief in District of Columbia v.
Heller. The brief was filed in
support of DC's ban on all
handguns, and ban on the use of
any firearm for self-defense in
the home. The
brief argued that the Second
Amendment is a "collective"
right, not an individual one,
and asserted that belief in the
collective right had been the
consistent policy of the U.S.
Department of Justice since the
FDR administration. A brief
filed by some other former DOJ
officials (including several
Attorneys General, and Stuart
Gerson, who was Acting Attorney
General until Janet Reno was
confirmed) took issue with the
Reno-Holder brief's
characterization of DOJ's
viewpoint.

But at the least, the
Reno-Holder brief accurately
expressed the position of the
Department of Justice when Janet
Reno was Attorney General and
Eric Holder was Deputy Attorney
General. At the oral argument
before the Fifth Circuit in
United States v. Emerson, the
Assistant U.S. Attorney told the
panel that the Second Amendment
was no barrier to gun
confiscation, not even of the
confiscation of guns from
on-duty National Guardsmen.

As Deputy Attorney General,
Holder was a strong supporter of
restrictive gun control. He
advocated federal licensing of
handgun owners, a three day
waiting period on handgun sales,
rationing handgun sales to no
more than one per month, banning
possession of handguns and
so-called "assault weapons"
(cosmetically incorrect guns) by
anyone under age of 21, a gun
show restriction bill that would
have given the federal
government the power to shut
down all gun shows, national gun
registration, and mandatory
prison sentences for trivial
offenses (e.g., giving your son
an heirloom handgun for
Christmas, if he were two weeks
shy of his 21st birthday). He
also promoted the factoid that
"Every day that goes by, about
12, 13 more children in this
country die from gun
violence"--a statistic is true
only if one counts
18-year-old gangsters who shoot
each other as "children." (Sources:
Holder
testimony before House
Judiciary Committee, Subcommittee
on Crime, May 27,1999;
Holder Weekly Briefing, May
20, 2000. One of the bills that
Holder endorsed is detailed in
my 1999 Issue Paper "Unfair
and Unconstitutional.")

After 9/11, he penned a Washington Post op-ed,
"Keeping Guns Away From
Terrorists" arguing that a new
law should give "the Bureau of
Alcohol, Tobacco and Firearms a
record of every firearm sale."
He also stated that prospective
gun buyers should be checked
against the secret "watch lists"
compiled by various government
entities. (In an
Issue Paper on the watch
list proposal, I quote a FBI
spokesman stating that there is
no cause to deny gun ownership
to someone simply because she is
on the FBI list.)

After the D.C. Circuit Court of
Appeals ruled that the D.C.
handgun ban and self-defense ban
were unconstitutional in 2007,
Holder
complained that the decision
"opens the door to more people
having more access to guns and
putting guns on the streets."

Holder
played a key role in the
gunpoint, night-time kidnapping
of Elian Gonzalez. The
pretext for the paramilitary
invasion of the six-year-old's
home was that someone in his
family might have been licensed
to carry a handgun under Florida
law. Although a Pulitzer
Prize-winning photo showed a
federal agent dressed like a
soldier and pointing a machine
gun at the man who was holding
the terrified child, Holder
claimed that Gonzalez "was
not taken at the point of a gun"
and that the federal agents whom
Holder had sent to capture
Gonzalez had acted "very
sensitively." If Mr. Holder
believes that breaking down a
door with a battering ram,
pointing guns at children (not
just Elian), and yelling "Get
down, get down, we'll shoot" is
example of acting "very
sensitively," his judgment about
the responsible use of firearms
is not as acute as would be
desirable for a cabinet officer
who would be in charge of
thousands and thousands of armed
federal agents, many of them
paramilitary agents with machine
guns.

Analyzing Colorado
Election Results:

Here's a new podcast in
which Jon Caldara and I
have a quick discussion
of Colorado's election
results, including the
defeat of several tax
increase ballot issues,
and the defeat of
Marilyn Musgrave. It's a
little over 7 minutes
long, and available
in MP3 on
iVoices.org.
2 Comments

What to do on FedSoc
Eve

The Federalist Society's
annual conference in
Washington, D.C., opens
on Thursday, November
20. The evening before,
the Mason Law Federalist
Society and American
Constitution Society are
co-hosting
a symposium on D.C.
v. Heller. The events
takes place from 5-8
p.m. at GMU Law School,
in Arlington, Virginia.
Speakers include Steve
Halbrook, Nelson Lund,
Clark Neily, John
Frazer, and me, on the
side of the Standard
Model, and Alan
Morrison, Dennis Henigan,
and others, on the
opposite side. My
presentation, in the
panel "Looking Back at
the History of the 2nd
Amendment," will be
about the natural law
roots of the Second
Amendment; it's the
topic of my
forthcoming article
in the Syracuse Law
Review. The event is
free, although if you
want the 3 CLE credits,
there is a $25 fee.
Registration is
here. 14 Comments

Just to guess, let's say
that Democrats win 4/7
of these races. The
final result is -15 for
the Second Amendment.
Not good, but much
better than the
worst-case scenario of
-26 I
noted last week.

The new House of
Representatives will
have a pro-gun majority
on a normal vote. The
Pelosi-Hoyer leadership
will certainly not be
pro-Second Amendment;
but that leadership has
recognized that its
majority is precarious
without pro-gun
Democrats. However, a
generally sympathetic
majority does not
guarantee victory for
the pro-rights side if
the President invests
major political capital,
as President Clinton did
in 1994 to pass the ban
on so-called "assault
weapons" by a single
vote.

U.S. Senate so far. In
Virginia, a +1 as
Democrat Mark Warner
wins the seat vacated by
the retirement of
Republican Jim Warner.
Elsewhere, -4 from
Democratic wins in
Colorado (Udall), NC
(Hagen), NH (Shaheen),
and NM (Udall).

Still undecided Senate
races:

Gun-owners win either
way in Alaska, where
Stevens might be the
Comeback Kid. He leads
with 66% of the vote
reported. I think that
Stevens is emblematic of
the culture of
institutionalized
corruption which I
admire Sarah Palin for
fighting. But I also
think that the
prosecutorial tactics
(including the illegal
concealment of evidence)
were so abusive in U.S. v. Stevens that
the judge should have
dismissed the charges.

The two other undecided
Senate races are Oregon
(Merkley v. Smith) and
Minnesota (Franken v.
Coleman). Both are tight
as a tick. The most
probable result would be
one win by each party.
So the final Senate
result would be -4.

Bottom line: More than
enough votes to hold a
filibuster, if the
Senators with the votes
have the will to hold.
Especially considering
that there are about
eight Democrat Senators
who would readily self-identify
as "pro-gun" and several
more who might vote that
way. And considering
that the Republican
caucus contains no
Republicans worse than a
C (as graded by the
NRA).

Governor losses. -1. In
Missouri, Democrat Nixon
replaces Republican
Blunt, who did not run
for re-election. There
is a potential gain if
Republican Rossi wins
the re-match of the race
which Democrat Gregoire
perhaps stole in 2004.

President. Based on past
record, certainly a -1.
One important difference
between our last
Democratic President and
our next one is the
latter has shown himself
to be much more
self-disciplined.
Accordingly, it is
possible that he will
not waste his political
capital on a reckless
culture war against gun
owners, as President
Clinton foolishly did.

So perhaps President
Obama will spend his
political capital
elsewhere, and be a -0.1
President on the gun
issue. The approach
would be in line with
the positive, unifying
themes that Obama
presented on victory
night in Iowa last
January, and with his
eloquent victory speech
tonight.

I don't know if
President Obama will be
so temperate. But anyone
who fears for the worst
can still hope for the
best.

Update: In the
Senate races, Stevens
and Coleman won (but
there will be a recount
for Coleman), and Smith
is leading with 70% of
the vote in. Chambliss
may face a run-off in
Georgia. So thus far,
the Senate count is -3.

In the House, the
pro-Second Amendment
candidate won the
following races which
were undecided: Alaska,
California, and Ohio 15.
Reichert has a slight
lead in Washington 8,
with 40% of the vote in.
So the final result in
the House is -14, or -15
if Reichert loses. There
are probably still
enough votes in both
houses of Congress to
pass positive
legislation, but not
enough to over-ride what
would be a near-certain
presidential veto. And I
doubt that the
leadership of either
house would put
President Obama in the
position of having to
veto a gun bill.
19 Comments

Bloggers' Predictions for
Tomorrow, and Analysis of
the Role of Blogging in
2008

National Journal assembled 46 leading
bloggers from the Left and
the Right
to predict the results
of the presidential
election, as well as some
other key races. The results
are sorted by Left and
Right. To the extent that
one might view negative
predictions as a Declaration
Against Interest, there are
the following interesting
results: The majority of
Left bloggers think Obama
will lose Montana. The
majority of Right bloggers
think McCain will lose
Pennsylvania; that
Republicans John Sununu (N.H.)
and Elizabeth Dole (N.C.)
will be defeated for
re-election; and the
Democrat Beverly Perdue will
be elected Governor of North
Carolina.

The various bloggers also
offer their comments on the
role that blogs played in
the 2008 election cycle, and
some guesses about the
biggest surprise on election
night.
6 Comments

Key Second Amendment
races in 2008:

My
article today for
National Review Online
examines every Governor
and U.S. Senate race,
and the top 50 U.S.
House races, to see
which races have
important implications
for the Second
Amendment, and which do
not. Bottom line: the
worst case scenario is a
loss of 7 pro-Second
Amendment votes in the
Senate, and 26 in the
House. The good news is
that things could be a
lot worse without the
many pro-RKBA Democrats
who are running. On
Tuesday night, Florida
and New York will be the
most important states to
watch for House races.
9 Comments

Taiwan's growing trade
with China: A national
security threat?

Last Friday, I presented
a paper at a symposium
at the University of
Chicago's International
House. The paper was
part of a symposium on
"Taiwan's New Approach:
Opportunities and
Challenges for President
Ma Ying-jeou's
Government." The paper
is titled
Poisoned Milk and the
Poisoning of Democracy:
Some Cautions about
China Trade and Taiwan
Sovereignty. It
argues that Taiwan
should make national
security the foremost
consideration in trade
policy with China. This
would support
liberalization of
Chinese tourism and
Chinese students being
allowed to study in
Taiwan, the better to
win the hearts and minds
of the Chinese people.
The paper suggests
that--for purposes of
human rights, and to sow
the seeds for long-term
political reform in
China--new Taiwanese
foreign direct
investment in China be
required to go to
businesses which allow
Chinese workers to elect
a workers council.
Taiwan should
energetically develop
its trade with India, as
an alternative to China;
should further restrict
Chinese food imports;
and should get rid of
trade negotiators who
have business interests
in China. Allowing
economic integration
with China without regard for national
security could, the
paper suggests, lead to
the destruction Taiwan's
sovereignty,
independence, and
freedom.
22 Comments

Origins of the
phrase "reverse
discrimination"

Do any commenters
have information
about when this term
was first used, and
who thought it up?
The earliest use in
a court case I have
found is in a New
York decision in
1964, but there
appear to be prior
uses starting at
least in the 1950s.
There is an urban
legend that the term
was invented by a
Klansman. Do
commenters have any
knowledge about that
claim?
15 Comments

The Paranoid Style
in American
Politics

Rocky Mountain News columnist
(and University of
Colorado law
professor) Paul
Campos used
the famous essay
by historian Richard
Hofstadter as the
template for
a column last
Wednesday,
criticizing
Republicans. In
my media analysis
column for the
News on
Saturday, I
suggested that--at
least based on the
evidence within
Campos's
column--"the
paranoid style" was
more accurate as a
description of
Campos's own
approach.
38 Comments

Obama's Real Records on
Guns & Sporting Issues
in Illinois

In a recent
interview with Field & Stream,
Barack Obama stated, "if
you talk to sportsmen in
my home state of
Illinois, they will tell
you that I've always
been a forceful advocate
on behalf of the rights
of sportsmen, on behalf
of access for sportsmen
and hunters. I've been
somebody who, well
before the recent
Supreme Court case,
stated my belief that
the Second Amendment was
an individual right." In
a
podcast for
iVoices.org, I
interviewed Richard
Pearson, the Executive
Director of the
Illinois State Rifle
Association. Pearson
has been lobbying on
sporting and right to
arms issues at the
Illinois legislature
since 1989. He has more
first-hand knowledge of
Obama's record on these
issues than anyone
except Obama himself. In
the 20-minutes podcast
interview, Pearson
suggests that Obama's
claim about his record
is extremely inaccurate.

As for Obama's
credibility on Second
Amendment issues, an
article by David
Hardy, on the Pajamas
Media website, points
out that during Obama's
tenure on the Board of
Directors of the Joyce
Foundation, the
Foundation spent a great
deal of grant money for
a long-running effort to
prevent the Second
Amendment from being
recognized as an
individual right
applicable to Americans
who are not in the
National Guard.
127 Comments

Some Reasons Why Polls
May Be Inaccurate

Back in the early 1990s,
Gary Mauser (Simon
Fraser University,
British Columbia) and I
wrote an article,
originally published in
Political
Communication &
Persuasion,
explaining why polls are
sometimes inaccurate as
measures of public
opinion. The article is
titled
'Sorry, Wrong Number':
Why Media Polls on Gun
Control are So Often
Unreliable, and
although the focus is on
polls about gun control,
the article observes
some general problems
with polling. If Senator
Obama on election day
significantly
underperforms, or
overperforms, what the
polls predict, there
will be many possible
causes, other than the
"Bradley Effect" or the
"Reverse Bradley
Effect." There are many
factors, other than
race-consciousness of
the interviewees, which
may cause a gap between
opinion polls and actual
votes.
37 Comments

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